Excerpt:.....of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- kadim / gair mumkin 2. as the awardees were not satisfied with the rate of compensation they sought various reference under s. it is beyond dispute that only the person against whom discrimination is practised can complain thereof. in the light of this finding these sale instance become totally irrelevant and cannot be taken as safe guide for the determination of the market price of the acquired land. 13. the net result,..........act (hereinafter referred to as the act). the land acquisition collector determined the rate of compensation payable to the claimants after hearing them, at the following rates:1. khalas chahi ... rs. 9228/- per acre.2. niai, nehri. khalas nahri niai ... rs. 9528/- per acre.3. dakar rosli ... rs. 5400/- per acre.4. banjar ladid /banjar ... rs./ 5000/- per acre.kadim / gair mumkin2. as the awardees were not satisfied with the rate of compensation they sought various reference under s. 18 of the act and as a result thereof, the learned lower court through different but similar judgment determined the rate of compensation payable to the claimants at rupees 11778/- per acre for the acquired land besides rs. 4180/- per acre as damages for the delayed pronouncement of the award.....

Judgment:

1. The State government acquired 137.11875 acres of land situated within the Revenue Estate of village Halwara, Tehsil Jagraon, District Ludhiana, for purposes of the Union of India, that is for the construction and extension of Halwara Airfield, through notification dated Nov. 26, 1968, published under S. 4 of the Land Acquisition Act (hereinafter referred to as the Act). The land Acquisition Collector determined the rate of compensation payable to the claimants after hearing them, at the following rates:

2. As the awardees were not satisfied with the rate of compensation they sought various reference under S. 18 of the Act and as a result thereof, the learned lower Court through different but similar judgment determined the rate of compensation payable to the claimants at Rupees 11778/- per acre for the acquired land besides Rs. 4180/- per acre as damages for the delayed pronouncement of the award under S. 48A of the Act. Through these twenty-two R. F. As Nos. 2013 to 2016 and 2022 to 2039 of 1979, the State has made a grouse of this enhancement and the award of damages under Section 48 of the Act. On the other hand, all the claimants have filed Cross Objections Nos. 17-CI to 21-CI and 23 -CI to 39-CI of 1979 to these appeal claiming compensation at a still higher rate. Admittedly in all these appeals and cross-fact objections identical question of law and fact arise for consideration and thus these are being disposed of through this common judgment. The learned counsel for the parties are agreed that for this purpose a reference to the facts and records of R. F. A No. 2013 of 1979 would suffice.

3. It deserves to be noticed here that the entire acquired land prior to the publication of the notification under S. 4 of the Act on Nov. 26, 1968 was already in possession of the Air Force Authorities w. e. f. 1958 under the provision of the Requisitioning and Acquisition of Immovable Property Act and the landowner claimants were only being paid a nominal rent for the same in terms of the said Act.

4. It is not in dispute that after entering into possession of this land the Air Force Authorities had build a number o roads and constructions for their residential, professional and miscellaneous uses.

5. The learned counsel for the union of India has raised two contentions before me-(i) the Land Acquisition Court could not possibly award any damages under S. 48A of the Act for the reason that the said section is only applicable to cases where the land is acquired for the improvement Trusts constituted under the Punjab town Improvement Act, 1922(hereinafter referred to as the Trust Act), and-(ii) the lower court has wrongly discarded their evidence, Exhibits R-1 to R-4 and erred in relying upon an award dated Apr. 4, 1972, given by the Sub-Divisional Officer (Civil), Jagraon, as Collector as the same was non est in the eye of law because the said Collector had no jurisdiction to announce the same. On the other hand, Mr. H. L. Sibal, learned Senior Advocate for the landowner-claimants while supporting the judgment of the lower Court on both the above noted counts, maintains that most of the evidence produced and proved by the claimants which was favourable to them in the sense that the rate of compensation indicated by the said evidence was much higher, has wrongly been ignored.

6. After hearing the learned counsel for the parties I find that the first contention of the State counsel is full of merit. S 59 of the Trusts Act an Act brought about to make provision for the improvement and extension of towns in Punjab-Provides that for purposes of acquiring land under the Land Acquisition Act, 1894, for the Trust the said Act, i. e. the Land Acquisition Act shall be subject to such other modification as are indicated in the schedule to the Trusts Act. The relevant provisions is reproduced as under:--

'59. For the purposes of acquiring land under the Land Acquisitions Act. 1894, for the trust--

(a) xx xx xx xx (b) the said Act shall be subject to the further modifications indicated in the Schedule to this Act;

(c) and (d) xx xx xx' Para 14 of the Schedule which only is relevant to the point in issue is reproduced as under:--

'14. After Section 48 of the said Act, the following shall be deemed to be inserted namely:--

48-A : (1) If within a period of one year from the date of the publication of the declaration under S. 6 in respect of any land, the Collector has not made an award under S. 11 with respect to such land, the owner of the land shall, unless he has been to a material extent responsible for the delay, for the damages suffered by him in consequence of the delay.

(2) The provision of Part III of this Act shall apply, so far as may be to the determination of the compensation payable under this section.'

7. Thus it is apparent that S. 48-A reproduced above has been added only by way of modification of the Act and is operative only when some land is sought to be acquired under the Act for purposes of the Trust. The submission of Mr. Sibal that this S. 48-A stands incorporated in the Act for all intents and purposes had thus no weight. This section or the modification of the Act is only for a limited purpose and that is when the land is acquired for purposes of an Improvement Trust and the award is not announced within a period of one years from the date of publication of the declaration under Section 6 of the Act, then the owner of the land would be entitled to damages for the delayed pronouncement of the award. Mr. Sibal then contends that it this interpretation is to be given to S. 59 of the Trusts Act and the Schedule thereto then this provision would on he face of it, be violative of Art. 14 of the Constitution of India for being discriminatory in the matter of payment of compensation to landowners who are though similarly situated, yet whose lands are being acquired under the two Acts that is, one under the Trusts Act and the other under the land Acquisition Act.

In support of this argument, the learned counsel relies on a Full Bench judgment of this Court in Devinder Kaur v. Ludhiana Improvement Trust, AIR 1975 Punj and Har 241. Besides the fact that this case was a converse case where the awardees were being paid less compensation for the acquisition of this land for purpose of the Improvement Trust than what would have been payable to them had their lands been acquired under the Act in the absence of the modification of the same in terms of the Schedule of the Trusts Act; I feel this argument is not at all available to the learned counsel in view of the judgment of their Lordship of the Supreme Court in Sarwan Singh v. State of Punjab, AIR 1975 SC 395 SC 394 where in the vires of Section 59 of the Trusts Act have been upheld.

Even in Devinder Kaur's case (supra) only the provision of S. 23 of the Act as modified by Para. 10 of the Schedule to the Trust Act were held to be ultra vires and the verdict of the Supreme Court in Sarwan Singh's case (supra) was accepted and followed. Otherwise also as held by me earlier, S. 48-A as introduced by Para. 14 of the Schedule to the Trusts Act is not applicable to the facts of this case for the reason that the present acquisition is not for purposes of the Trust, no question of discrimination arises in this case. It is beyond dispute that only the person against whom discrimination is practised can complain thereof. Even if for argument's sake S. 48-A referred to above is held to be violative of Art. 14 and thus void, even then the claimants would not gain anything or cannot be given any relief under the said section.

In Devinder Kaur's case (supra), the awardees were being paid less compensation under Section 23 of the Act as modified by the Trusts Act and it was under these circumstances that it was held that the modified S. 23 of the Act had the effect of reducing the amount of compensation to an amount less than the amount payable under the land Acquisition Act and was thus ultra vires Art. 14 of the Constitution of India and was struck down. Here no such contingency arises. The landowner-claimants in a nutshell claim that they should be paid compensation or damages under a provision of law, which is not applicable to them. Thus I sustain the objection raised by the learned counsel for the State and Set aside that counsel for the State and set aside that part of the order of the lower Court whereby damages at the rate of Rs. 4180/- per acre have been allowed to the landowner-claimants under S. 48-A of the Act referred to above for the delayed pronouncement of the award. In view of this conclusion of mine I need not go into the method and manner of working out the damages which too otherwise appears to be unsustainable.

8. So far as the question of fixation of the market price of the acquired land is concerned, I do not find much substance in the contention of the learned counsel for the State. Before dealing with the rival contention of the parties, I feel it proper to make a reference to the details of the sale instances relied upon by the parties :--

9. As would be apparent from the above chart, the average price per acre indicated by Exhibits R-1 to R-4 is far below than what has even been offered by the Collector through his award referred to in the earlier part of the judgment. This obviously means that even the collector did not find these instance as relevant for purpose of determining the rate of compensation or these instances did not relate to land similar to one under acquisition. Though these instances do relate to the land of village Halwara, yet the location of the lands covered by these vis--vis the acquired land is also not very clear. The lower Court has also found that the land under acquisition had ceased to be agricultural land on account of its having been converted almost into a residential area and thus had to be evaluated at a flat rate.In the light of this finding these sale instance become totally irrelevant and cannot be taken as safe guide for the determination of the market price of the acquired land. Thus I do not find anything wrong with the approach of the lower Court in discarding these instances out of consideration.

10. Now to examine the claim of the landowners for still a higher rate of compensation it is pertinent to note the location and the potentiality of the land as determined by the lower court. This is what has been said by the lower court after examining the evidence on record:--

'In these circumstances the claimants' land requisitioned or later on acquired for the Aerodrome has to be assessed in one category at one flat rate. It has also come in the evidence that because of the controlled area being under the Air Force there could not be instances of sale not any industry could come up as no construction could be made without prior permission of the Air Force Authorities. In those circumstances, market price can only be assessed on average price criteria. A reference to the site plan and the evidence would show that the claimants land about (abuts?) or is near to a metalled road known as Halwara-Raikot road and there is a huge shopping centre at Pulsudhar.'

11. This conclusion of the lower Court is fully supported by the evidence of AW 1 Malkiat Singh and AW 2 Joginder Singh claimants, AW 3 Bikram Singh Patwari, who has produced and proved the site plan Exhibit A-1, AW 4 Gurdev Singh Patwari Halqa Halwara, who has proved the site plan Exhibit AW 4/1 and Pritam Singh Qanungo RW 1. According to AW 2 Joginder Singh, Halwara is a big village and there is a cinema-hall at a distance of about two furlongs from the acquired land and a marketing center had also come into existence near this land prior to the date of notification under Section 4 of the Act. There is a degree college and Central School Canal near Pulsudhar (a bridge on the Sirhind Canal near village Sudhar) which is at a distance of about 1 1/2 miles from the acquired land. The Aerodrome was completed somewhere in 1947-48 and number of residential colonies of the officers and other personnel of the air-force had also been constructed in and around the acquired land. He has further stated that 4 acres of land was acquired by the State Government for being allotted as house sites to Harijans of villages Halwara near to the village Abadi and the acquired land in the present case and the compensation for that land was determined by the authorities at Rs. 22,000/- per acre.

This evidence of the claimants has remained unrebutted and is rather supported by other A. Ws., that is Malkiat Singh, Bikram Singh and Gurdev Singh in material particulars. Even Pritam Singh, Kanungo, examined on behalf of the Collector, Land Acquisition as R. W. 1 has not contradicted or rebutted the statement made by the claimants and supported by A.Ws with regard to the location and the construction of various buildings in and around the acquired area or its potentiality and has rather admitted that at the time of the pronouncement of the earlier award dated Apr. 4 1972,by the Subdivisional Officer (Civil) Jagraon, the market value of the Banjar land had been assessed by him at Rs. 18640/- per acre. This award of the Collector, however, was not taken to be legal or valid for the reason that he had not been conferred with the powers of the Collector under the Act.This led to the present reassessment of the market price by another collector with the result already indicated in the opening part of the judgment.

The learned counsel for the State appears to be right in saying that award dated Apr. 4, 1972, cannot be taken as a legal one for the reason that the same was the determination of the market price by a person who was not competent to pronounce that award, yet he does not appear to be right in submitting that it should be right in submitting that is should have been totally excluded by the lower court from consideration for the reason that this award was undoubtedly as assessment of the market price of the acquired land by a revenue officer of the sub-Division, on the basis of the revenue record available with him. This award may not be binding on the acquiring authorities yet it cannot be said that it had no legal values as a piece of evidence. Even the person who prepared the necessary data for the said award, i. e., Pritam Singh Kanungo, R. W. 1, has deposed about the rate of market price as assessed in that award. Thus from the evidence noted above it is apparent that the Banjar land, which in all probability included the land meant or sold for Abadi areas was rated at a higher price than other types of agricultural land, i. e., Khalas Chahi, Chahi-Nehri, Niani Chahi, etc.

12. It is the admitted case of the parties that the entire acquired land being already in possession of the Air Force Authorities had become Banjar land and various construction had been raised therein and was practically in use as a residential colony. Another piece of evidence which has remained unrebutted on record is the statement of Joginder Singh claimant when he says that 4 acres of land was acquired for providing houses sites to the Harijans of the village near the village Abadi at the rate of Rupees 2200/- per acre. Learned counsel for the claimants appears to be very right in submitting that the learned land Acquisition court has gone entirely wrong in determining the market price of the acquired land as agricultural land even after having recorded a finding that the entire acquired land had to be treated at par or in one category for determination of its market price.

What the lower Court has done is that after accepting the rates of the various types of land as determined by the Sub-Divisional Officer (Civil), Jagraon, vide his award dated Apr, 4, 1972, it has taken the average of the same and fixed the market price of the land at Rs. 11778/- per acre. This obviously is wrong. If the land had to be treated in one category as it has to be being Banjar or Abadi land, then to take into consideration the price of other types into consideration the price of other types of agricultural land is wholly irrelevant. As pointed out earlier, Price of the Banjar land had been determined by the Collector vide dated Apr. 4, 1972 at Rs. 18640/- per acre. Besides this 4 acres of land had been acquired by the State government near to the village Abadi of Halwara at the rate of Rs. 22000/- per acre, for providing house sites to the Harijans of the village. This to my mind indicates the price of areas which could be utilised as Abadi areas.

Though the above noted award related to an acquisitions on June 7, 1974 yet, as the evidence sands on regard, the entire acquired land was virtually a residential colony or at least was having the potentiality for being utilised in that manner and had the Acquisitioning or Air Force Authorities walked out of this land on the date of the notification under Section 4 of the Act, the claimants would have been in a position to sell this land if not at higher rates then at least on the highest of the two rates noted above, i.e. Rs. 22000/- per acre. Thus keeping in view the surroundings and the potentiality of the acquired area. I determine the market price of the acquired land at a flat rate of Rs. 22000/- per acre. Besides this the claimants would also be entitled to the statutory solatium and interest at the rates of 15% and 6 per cent respectively on the enhanced amount of compensation. All this, however, would be subject to the claim made by them and the court-fee paid thereupon.

13. The net result, therefore, is that all the State appeals fail and are dismissed with no order as to costs and the cross objections filed by the claimants succeed to the extent indicated above and are allowed with proportionate costs.